Originally Posted: Apr 15 22 5:03 PM ET
Updated: 16 APR 22 09:22 ET
By Tierney Sneed and Sara Murray, CNN
(CNN) — Steve Bannon, the former adviser to former President Donald Trump who has been charged with contempt of Congress, on Friday asked a federal judge to dismiss his criminal case.
Among the host of reasons provided by Bannon why his case should be thrown out: He said the congressional subpoena he received was invalid because of the composition of the House select committee investigating the attack of January 6, 2021 against the US Capitol and argued that he was “targeted to send a message.”
Bannon also argued that his actions were necessary to protect the former president’s ability to protect information under executive privilege and insisted that he relied on previous guidance from the Department of Justice over executive privilege to challenge congressional subpoena.
“In the circumstances presented here, it would be fundamentally unfair and a clear violation of due process to allow this lawsuit to proceed,” Bannon’s attorneys wrote in a court filing Friday night. “It must be rejected.”
Bannon is due to stand trial in July in the criminal contempt of Congress case the Justice Department brought against him for failing to comply with the House committee’s Jan. 6 subpoena. He pleaded not guilty.
Bannon’s legal team repeatedly pointed to indications that Trump was seeking to assert executive privilege on certain records as part of Bannon’s defense.
“Mr. Bannon received real authority in this case for his breach of subpoena directly from former President Trump’s invocation of executive privilege and the corresponding directive to Mr. Bannon that Mr. . Bannon must honor this invocation with respect to the subpoena,” Bannon’s attorneys wrote in the court filing.
Bannon’s Friday night filing comes after he suffered a major setback in his case, which the Justice Department filed in November after he failed to comply with a subpoena issued by the Jan. 6 panel. .
U.S. District Judge Carl Nichols ruled last week that Bannon could not use as a defense – if his case went to trial – evidence that he was following his attorney’s advice in choosing not to cooperate with the House inquiry.
On Friday, the Justice Department sought to further limit the evidence Bannon can present at trial in his defense, asking Bannon’s judge to exclude three new categories of evidence.
The DOJ wants to exclude its internal opinions and writings setting out the department’s views on whether current or former federal officials can be sued in subpoena litigation in which they have raised claims of privilege or executive immunity. Bannon obtained these records after obtaining a discovery order from the judge, although several of the documents have already been made public and cited in Bannon’s previous filings.
The Justice Department also argued that the internal departmental documents Bannon has cited so far deal with separate scenarios from what Bannon faced when he chose not to participate in the investigation.
“Defendant was not subpoenaed in connection with his tenure as an executive branch official and was never ordered by the executive branch or former President Donald Trump to engage in a complete disregard of subpoena of the January 6 select committee (“the committee”) as it chose to do,” the filing reads. “Given the irrelevance of the evidence, the Court should exclude it.”
Bannon served as a White House adviser early in the Trump administration, but had been absent from the federal government for years prior to the period examined by the House committee.
Shortly after the Justice Department submitted its request to have the records excluded, Bannon highlighted the documents in a notice he filed with the court regarding his intentions to assert a defense of “entrapment by estoppel” – that is, an argument that the defendant had been misled by government statements to believe that his conduct was lawful.
In his motion to dismiss, Bannon argued that previous Justice Department guidance is relevant to his case and should offer grounds for dismissal.
“The legal authority that Mr. Bannon has relied on in this case reflects the formal, official, binding and authoritative position of the Department of Justice, the very agency that is pursuing this case in direct violation of its own official policy. official, binding and published,” Bannon’s attorneys wrote.
The Justice Department also asked the judge to keep out any evidence Bannon seeks to present that he had complied with previous subpoenas; According to the department’s account of a presentation Bannon’s attorney gave to prosecutors before his client was charged, Bannon testified in four previous circumstances – in the various investigations into election interference in Russia in 2016 – at the about his communications with Trump.
“Just as the fact that a person did not rob a bank one day is irrelevant in determining whether he robbed a bank another, whether the accused complied with other subpoenas or testimony requests – even those involving communications with the former president – – are irrelevant to determining whether he unlawfully refused to comply with the Committee’s subpoena here,” the DOJ wrote Friday.
Finally, the government told the court that Bannon should not be able to argue at his trial that the Committee’s Jan. 6 subpoena against him was invalid because of alleged procedural flaws plaguing the panel.
Any procedural objections Bannon would seek to raise about the committee’s subpoena come too late, the Justice Department argued in its Friday request to limit that defense.
“It is well-established law in the context of contempt of Congress that a subpoenaed witness who raises no objection or apparent privilege to a subpoena to the issuance committee has waived it as a defense to the ‘contempt,’ the government wrote in the court filing.
Bannon, meanwhile, filed a motion with the court on Friday seeking the exclusion of evidence the government obtained from subpoenas it issued on his attorney’s phone and electronic records, as well as presentations the government obtained. lawyer made to prosecutors before Bannon was charged.
Bannon accused the government of ‘exaggerating the prosecution’ for seeking information about his attorney and said the government misled the grand jury, two grounds for dismissal, Bannon’s attorneys argued in the filing of the court.
Pre-trial disputes over evidence will shape the contours of each party’s case.
Bannon is just one of four recalcitrant witnesses the January 6 Committee referred to the Justice Department for prosecution, but the only one to date to face criminal prosecution for his failure to comply with a subpoena. to appear. The course of his case will reverberate as other potential witnesses weigh whether or not to cooperate with the congressional investigation.
This story and title have been updated.
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